369 F.

3d 113

Stewart J. RODAL, Plaintiff-Appellant,

v.
ANESTHESIA GROUP OF ONONDAGA, P.C., DefendantAppellee.
Docket No. 03-7341.

United States Court of Appeals, Second Circuit.

Argued: March 17, 2004.
Decided: May 24, 2004.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL

OMITTED Stewart L. Weisman, Manlius, New York, for PlaintiffAppellant.
Shari R. Cohen, Scolaro, Shulman, Cohen, Fetter & Burstein, P.C.,
Syracuse, New York, for Defendant-Appellee.
Before: SACK, SOTOMAYOR, and RAGGI, Circuit Judges.
RAGGI, Circuit Judge:

Plaintiff-Appellant Stewart J. Rodal, M.D., appeals from an award of summary

judgment entered in the United States District Court for the Northern District of
New York (Howard G. Munson, Judge), in favor of the Defendant-Appellee,
Anesthesia Group of Onondaga, P.C. (the "Anesthesia Group" or the "Group"),
on Dr. Rodal's claims of employment discrimination under the Americans with
Disabilities Act, 42 U.S.C. 12112(a) ("ADA"), and New York's Human
Rights Law, N.Y. Exec. Law 296 (McKinney 2001). See Rodal v. Anesthesia
Group of Onondaga, P.C., 250 F.Supp.2d 78 (N.D.N.Y.2003). The district
court ruled that, as a matter of law, Dr. Rodal could not demonstrate his ability
to perform the duties of a Group anesthesiologist because the accommodation
he required, relief from the essential job functions of night and weekend duty,
was not reasonable. See id. at 82-83. The district court further concluded that
even if the requested accommodation were reasonable, the Group was excused
from granting it because of the undue hardship it would work on the Group's
other physicians. See id. at 83. While the district court opinion raises legitimate

concerns about the merits of Dr. Rodal's claims, we conclude that these
concerns cannot be resolved as a matter of law on the record presented. The
record reveals genuine issues of material fact as to whether Dr. Rodal ever
sought a scheduling accommodation from the Group in 1999; if he did, whether
the accommodation was reasonable in light of receptive statements by the
Group's president; and, if the accommodation was reasonable, whether its
implementation would work a demonstrable undue hardship on the Group.
Accordingly, we reverse the award of summary judgment and remand the case
for further proceedings consistent with this opinion. In doing so, we note that
the Supreme Court's ruling in Clackamas Gastroenterology Associates, P.C. v.
Wells, 538 U.S. 440, 123 S.Ct. 1673, 155 L.Ed.2d 615 (2003), entered since the
district court's judgment, raises a further question as to whether Dr. Rodal
qualifies as an employee of the Group entitled to pursue ADA relief, resolution
of which will require further development of the record on remand.
I. Factual Background
A. The Undisputed 1995 Accommodation
2

Dr. Stewart J. Rodal is a board-certified anesthesiologist who, in 1986, became

a shareholder in the Anesthesia Group, a medical practice providing
anesthesiology and related services to two hospitals in the vicinity of Syracuse,
New York. Beginning in 1994, Dr. Rodal experienced various health problems
attributable to a metastatic islet cell tumor, a rare form of cancer. In 1995, Dr.
Rodal advised Dr. Anthony Ascioti, the director and president of the
Anesthesia Group, that he wished to continue working but that his illness
precluded him from performing night and weekend shift duty. Dr. Ascioti
agreed to excuse Dr. Rodal from these responsibilities, and for the next six to
seven months, Dr. Rodal worked on a modified schedule receiving full
compensation.

At the same time, Dr. Rodal and the Group discussed the possibility of a
compensation reduction if his modified schedule were to become permanent.
When the parties failed to reach an understanding on this point, Dr. Rodal
returned to full-time duty in January 1996. On occasions when his health did
not permit him to cover night and weekend shifts, Dr. Rodal paid other
physicians to handle these duties.
B. The Disputed 1999 Accommodation

By 1999, it was clear to Dr. Rodal that he could no longer work a full schedule.

On May 27, 1999, he spoke with Dr. Ascioti and requested a return to a nonights no-weekends schedule. Receiving no response, Dr. Rodal announced his
intention to take disability leave from the Anesthesia Group, which he did on
July 17, 1999.
C. Dr. Rodal's Discrimination Claim
5

On May 5, 2000, Dr. Rodal filed a disability discrimination charge against the
Anesthesia Group with the Buffalo office of the Equal Employment
Opportunity Commission ("EEOC"). The EEOC dismissed Dr. Rodal's
complaint on June 28, 2000, on the alternative grounds that (1) jurisdiction was
lacking because Dr. Rodal was a shareholder and director of the Anesthesia
Group rather than an employee, and (2) the evidence failed to indicate a
violation of law.

On September 13, 2000, Dr. Rodal filed the present action demanding
compensatory and punitive damages from the Anesthesia Group under federal
and state law for disability discrimination both in failing to accommodate his
disability and failing to hire him as the Group's billing manager. On this appeal,
Dr. Rodal pursues only the accommodation claims; accordingly, we make no
further mention of the failure to hire claims. 1

The Group acknowledged that under this court's ruling in Hyland v. New Haven
Radiology Associates, P.C., 794 F.2d 793 (2d Cir.1986), Dr. Rodal was one of
its employees for purposes of the ADA. Nevertheless, it moved for summary
judgment on the ground that Dr. Rodal could not establish that he was qualified
to perform the essential functions of his job because (1) he had stated otherwise
in an affidavit filed in a state lawsuit against the Group and was, therefore,
judicially estopped from taking a contrary position in this action; and (2) his
health condition presented a threat to proper patient care. 2 The Group further
argued that Dr. Rodal could not establish that he had sustained an adverse
employment action based on disability discrimination because he had not, in
fact, sought any accommodation from the Group in the period between 199699.

On May 18, 2003, the district court granted the Group's motion for summary
judgment, ruling as a matter of law that (1) Dr. Rodal's request to be excused
from night and weekend duty was not a reasonable accommodation because
such duties were essential functions of his position, and (2) granting the
accommodation would be unduly harmful to other physicians in the Group,
who would have to assume greater responsibility for night and weekend duty.

See Rodal v. Anesthesia Group of Onondaga, P.C., 250 F.Supp.2d at 82-83.

II. Discussion
9

"Summary judgment is appropriate where `there is no genuine issue as to any

material fact and ... the moving party is entitled to a judgment as a matter of
law,' i.e., `where the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party.'" Lovejoy-Wilson v. NOCO Motor Fuel,
Inc., 263 F.3d 208, 212 (2d Cir.2001) (quoting Fed.R.Civ.P. 56(c) and
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986)). We conduct de novo review of the district
court's award of summary judgment, construing the evidence in the light most
favorable to the non-moving party. Id.
A. Dr. Rodal's ADA Claim

10

A plaintiff suing for disability discrimination under the ADA bears the initial
burden of establishing a prima facie case. Where, as in this case, a disabled
plaintiff claims that he can perform a particular job with a reasonable
accommodation, the prima facie burden requires a showing that (1) plaintiff is
a person with a disability under the meaning of the ADA; (2) an employer
covered by the statute had notice of his disability; (3) with reasonable
accommodation, plaintiff could perform the essential functions of the job at
issue; and (4) the employer has refused to make such accommodations. Id. at
217.3 On this appeal, the parties focus on the third and fourth requirements and
present the following questions for our review: (1) should Dr. Rodal be
judicially estopped from claiming that he was qualified to perform his job; (2)
in 1999, did Dr. Rodal request an accommodation of his disability, which the
Group thereafter denied; (3) if Dr. Rodal did seek such an accommodation, was
the request unreasonable in asking the Group to relieve Dr. Rodal of night and
weekend duty; and (4) would granting the accommodation have caused undue
hardship to the Group.4

11

1. Whether Dr. Rodal Should Be Judicially Estopped from Claiming that He

Was Qualified to Perform His Job with the Group

12

The doctrine of judicial estoppel prevents a party from asserting a factual

position in one legal proceeding that is contrary to a position that it successfully
advanced in another proceeding. See Mitchell v. Washingtonville Cent. Sch.
Dist., 190 F.3d 1, 6 (2d Cir.1999). Thus, "[a] party invoking judicial estoppel
must show that (1) the party against whom the estoppel is asserted took an

inconsistent position in a prior proceeding and (2) that position was adopted by
the first tribunal in some manner, such as by rendering a favorable judgment."
Id. (citation omitted).
13

In this case, the Group submits that Dr. Rodal should be estopped from
asserting, as he does in his affidavit in opposition to summary judgment, that he
"was fully capable of performing the essential functions of the position as an
anesthesiologist [with the Group] had [he] been accorded the accommodation
of a reduction in hours," Rodal Aff. 33, in light of a contrary statement in an
affidavit he filed in state court in support of a successful summary judgment
motion in a case concerning the Group's financial obligations to Dr. Rodal as a
consequence of his taking disability leave. In that affidavit, Dr. Rodal stated, in
relevant part:

14

9. On May 27, 1999, I discussed with [Dr. Ascioti] that I felt my condition had
become such that I could not continue to work any longer and that it would be
necessary for me to go out on disability....

15

10.... [O]n July 17, 1999, I became disabled and unable to perform
substantially all of my duties due to illness. This condition continued in excess
of one year....

16

11. I respectfully submit that there is no factual dispute and there can be no
factual dispute as to the extent or duration of my disability....

17

Aff. of Stewart J. Rodal at 3, Rodal v. Anesthesia Group of Onondaga, P.C.,

No.2000-6717 (N.Y. Sup. Ct, Onondaga Cty.2000) (emphasis added).

18

The law in this circuit recognizes that when an individual's prior submission
regarding his disability to an adjudicatory body contains a "purely factual
statement[] that directly contradict[s]" a statement made in a subsequent ADA
claim, and the two "[can]not be reconciled with any amount of explanation,"
judicial estoppel will preclude the ADA claim. Parker v. Columbia Pictures
Indus., 204 F.3d at 334 (citing as examples of factually contradictory
statements plaintiffs' assertions that they could/could not raise their arms above
their head, or could/could not stand and walk). As the Supreme Court cautioned
in Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119 S.Ct.
1597, 143 L.Ed.2d 966 (1999), however, a court must carefully consider the
contexts in which apparently contradictory statements are made to determine if
there is, in fact, direct and irreconcilable contradiction. In Cleveland, the Court
ruled that a representation of complete disability in a Social Security

proceeding was not directly contradicted by the same person's ADA claim that
he could perform essential job functions with reasonable accommodation
because the former proceeding did not consider the effect that reasonable
workplace accommodations would have on the claimant's ability to work. See
id. at 807, 119 S.Ct. 1597.
19

Dr. Rodal analogizes his case to Cleveland and notes that his ability to perform
his job duties at the Group with a reasonable accommodation was not an issue
in the parties' state court dispute. We agree that if the evidence is viewed in the
light most favorable to Dr. Rodal, the statements can be construed without
conflict to reflect the evolution of events between May and July 1999. In this
action, Dr. Rodal states that if his May 1999 request for a scheduling
accommodation had been granted, he could have continued to work as a Group
anesthesiologist, performing the essential duties of that job. But, as he stated in
the New York action, with no such accommodation having been granted by
July 1999, he could no longer carry out the duties of that position and, thus,
found it necessary to take disability leave.

20

Because the statements at issue do not present an irreconcilable direct conflict,

we hold that the Group is not entitled to summary judgment on a theory of
judicial estoppel. Instead, Dr. Rodal's statements, together with all other
relevant evidence, will have to be weighed by the factfinder to determine
whether the doctor has established a claim of disability discrimination.

2. Whether Dr. Rodal Actually Requested and the Group Denied a Reasonable
Accommodation in 1999
21

"In general ... it is the responsibility of the individual with a disability to inform
the employer that an accommodation is needed." 29 C.F.R. pt. 1630 app.
1630.9. The record reveals a major factual dispute between the parties as to
whether in 1999 Dr. Rodal sought, and whether the Group refused to grant him,
a reasonable accommodation for his disability.

22

In support of its motion for summary judgment, the Group pointed to Dr.
Ascioti's deposition statement that "[f]rom the time [Dr. Rodal] returned to the
Hospital in January, 1996, until he went out on disability in July, 1999, [Dr.]
Rodal never requested an accommodation permitting him to work days only,
without any night or weekend call." Ascioti Aff. 29. By contrast, Dr. Rodal
averred that at a May 27, 1999 meeting with Dr. Ascioti, he orally requested a
scheduling accommodation. See Rodal Aff. 25-29. Such a factual dispute
cannot be resolved as a matter of law. Thus, in reviewing the district court's
award of summary judgment in favor of the Group, we must assume that Dr.

Rodal's version of the story is the correct one.

3. The Reasonableness of Dr. Rodal's Requested Accommodation
23

If we assume that Dr. Rodal did request a scheduling accommodation on May

27, 1999, and that the Group failed to grant it, summary judgment in favor of
the Group would nevertheless be appropriate if the accommodation was
unreasonable as a matter of law. The district court so concluded based on a
finding that the accommodation required the Group to eliminate an essential
function of Dr. Rodal's job, specifically, night and weekend duty.

24

A disabled individual is qualified for a particular position if he can perform the

essential functions of the job with or without reasonable accommodation. See
Shannon v. New York City Transit Auth., 332 F.3d 95, 99-100 (2d Cir.2003). A
modified work schedule may constitute a reasonable accommodation in certain
circumstances. See 42 U.S.C. 12111(9)(B) (including "part-time or modified
work schedules" within the list of methods encompassed by the term
"reasonable accommodation"). But a scheduling accommodation is not
reasonable if it, in essence, requires an employer to eliminate an essential
function of a job. See Shannon v. New York City Transit Auth., 332 F.3d at 100
("A reasonable accommodation can never involve the elimination of an
essential function of a job.").

25

EEOC regulations define "essential functions" to mean the "`fundamental'

duties to be performed in the position in question, but not functions that are
merely `marginal.'" Id. (quoting Stone v. City of Mount Vernon, 118 F.3d 92, 97
(2d Cir.1997) (citing 29 C.F.R. 1630.2(n)(1) (1996)))." `[A] court must give
considerable deference to an employer's judgment regarding what functions are
essential for service in a particular position.'" Id. (quoting D'Amico v. City of
New York, 132 F.3d 145, 151 (2d Cir.1998)). But ultimately, the question
whether a task constitutes an essential function depends on the totality of the
circumstances. See Stone v. City of Mount Vernon, 118 F.3d at 97 (factors
relevant to determining whether a job function is essential include the
employer's judgment, written job descriptions, the amount of time spent on the
job performing the function, the consequences of not requiring the plaintiff to
perform the function, mention of the function in any collective bargaining
agreement, the work experience of past employees in the job, and the work
experience of current employees in similar jobs (citing 29 C.F.R. 1630.2(n))).

26

Mindful of this precedent, we conclude that the record in this case, when
viewed in the light most favorable to Dr. Rodal, did not permit the district court
to rule as a matter of law that night and weekend duty constituted an essential

function of his job as a Group anesthesiologist. Although it appears undisputed

that Dr. Rodal had always performed night and weekend duty before his illness
and that all other shareholder-physicians in the Group were expected to do so,
the Group had, nevertheless, accommodated Dr. Rodal's request to be relieved
of this duty for several months in 1995 and, apparently, would have been
prepared to do so permanently had the parties reached agreement on a
compensation modification. Further, Dr. Ascioti's deposition testimony
concedes that the Group would have been willing to grant Dr. Rodal another
scheduling accommodation in 1999 had one been requested. Dr. Ascioti
explained that "[t]hroughout 1999, the Group was short-staffed and actively
recruiting physician-employees to work days only." Ascioti Aff. 30. Although
these physician-employees were not shareholders or directors of the Group, as
was Dr. Rodal, Dr. Ascioti stated that because the Group was "understaffed and
seeking days-only physicians, we certainly would have addressed [Dr. Rodal's]
request for an accommodation, had such a request been made." Id. 33. In
short, the Group's own evidence indicates that it did not consider the requested
scheduling accommodation unreasonable; its singular concern with such an
accommodation was making an adjustment to Dr. Rodal's compensation to
reflect the transfer of his night and weekend duties to other physicians. The
propriety of such an adjustment is not here at issue.
27

We note simply that the Group, in moving for summary judgment, never
challenged the reasonableness of the requested accommodation on the ground
that it sought to eliminate an essential function of Dr. Rodal's job. Rather,
relying on Dr. Ascioti's statements, the Group argued that Dr. Rodal had not
requested such an accommodation. Although the Group now tries to defend the
district court's essential-function conclusion, we hold that Dr. Ascioti's
statements raise questions of fact on the reasonableness of the requested
accommodation that preclude an award of summary judgment.

4. Whether the Requested Accommodation Would Cause "Undue Hardship" for the
Anesthesia Group
28

Even if Dr. Rodal's requested accommodation was reasonable, the Group would
still be entitled to summary judgment if the implementation of the
accommodation would work an "undue hardship." Lovejoy-Wilson v. NOCO
Motor Fuel, Inc., 263 F.3d at 221. The district court concluded that requiring
other Anesthesia Group physicians to cover Dr. Rodal's night and weekend
shifts in addition to their own would result in such a hardship. Rodal v.
Anesthesia Group of Onondaga, P.C., 250 F.Supp.2d at 83. Once again, we
conclude that the record, when viewed in the light most favorable to Dr. Rodal,
does not permit such a conclusion to be reached as a matter of law.

29

"Undue hardship" is an employer's affirmative defense, proof of which requires

a detailed showing that the proposed accommodation would "requir [e]
significant difficulty or expense" in light of specific enumerated statutory
factors. Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d at 221; see 42
U.S.C. 12111(10)(A)-(B) (identifying relevant factors to include (1) the
employer's type of operation, including its composition, structure, and the
functions of its workforce; (2) the employer's overall financial resources; (3)
the financial resources involved in the provision of the reasonable
accommodation; and (4) the impact of such accommodation upon the
employer's operation).

30

The Anesthesia Group never asserted this affirmative defense before the district
court and never adduced evidence to show that accommodating Dr. Rodal
would result in an undue hardship. Specifically, it provided no schedules
indicating how it covered night and weekend duty. Nor did it provide any
concrete evidence indicating the likely impact of Dr. Rodal's accommodation
on these schedules. Certainly, it provided no evidence of the Group's financial
resources, the costs associated with the accommodation, or the impact of those
costs on the Group depending on whether a compensation modification was or
was not agreed to by Dr. Rodal. We recognize, as the district court did, that if
Dr. Rodal were relieved from night and weekend duty, the burden of these notinsignificant responsibilities would fall on other doctors, but without concrete
information, we cannot conclude as a matter of law that the burden was so
disproportionately heavy as to absolve the Group from its reasonable
accommodation obligations under the ADA. Accordingly, the award of
summary judgment must be reversed.

B. Dr. Rodal's Status as an "Employee" Under the ADA

31

Dr. Rodal's ADA claim is based on 42 U.S.C. 12112(a), which states in

pertinent part that "[n]o covered entity shall discriminate against a qualified
individual with a disability because of the disability of such individual in regard
to... the discharge of employees, employee compensation, ... and other terms,
conditions, and privileges of employment." The statute defines an "employee"
simply as "an individual employed by an employer," id. 12111(4), a"
`circular'" construction that, as the Supreme Court has observed, "`explains
nothing.'" Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. at 444,
123 S.Ct. 1673 (quoting Nationwide Mut., Ins. Co. v. Darden, 503 U.S. 318,
323, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992)) (construing similar definition of
employee in ERISA).

32

For some time, the definition presented particular challenges as applied to

professional corporations, "a [relatively] new type of business entity that has no
exact precedent in the common law." Id. at 447, 123 S.Ct. 1673. Prior to the
enactment of state statutes authorizing such corporations, professionals often
associated as partners, to whom it was "generally accepted that the benefits of
... antidiscrimination statutes ... do not extend." Hyland v. New Haven
Radiology Assocs., P.C., 794 F.2d at 797. In professional corporations,
however, the participating professionals are "shareholders," which led some
courts, including this one, to conclude that "[h]aving made the election to
incorporate" and reap the tax and employee benefits associated with this
business form, they could not at the same time claim that their business was
"essentially a ... partnership" for purposes of evading antidiscrimination laws.
Id. at 798. Other courts, however, concluded that "[t]he role of a shareholder in
a professional corporation is far more analogous to a partner in a partnership
than it is to the shareholder of a general corporation," and ruled that such
shareholders could not be considered "employees" protected from workplace
discrimination. EEOC v. Dowd & Dowd, Ltd., 736 F.2d 1177, 1178 (7th
Cir.1984).
33

Last term, the Supreme Court intervened to resolve the circuit conflict on this
issue. In Clackamas Gastroenterology Associates, P.C. v. Wells, the Court
eschewed categorical approaches and instead looked to the common-law
master-servant relationship for guidance, stating that "the common-law element
of control is the principal guidepost that should be followed" in evaluating
whether a shareholder of a professional corporation is an "employee" for
purposes of the antidiscrimination statutes. 538 U.S. at 448, 123 S.Ct. 1673.
The Court ruled that the relevant inquiry is "whether the individual acts
independently and participates in managing the organization, or whether the
individual is subject to the organization's control." Id. at 449, 123 S.Ct. 1673. It
approved six factors, identified by the EEOC, as relevant to this determination:

34

"Whether the organization can hire or fire the individual or set the rules and
regulations of the individual's work

35

Whether and, if so, to what extent the organization supervises the individual's
work

36

Whether the individual reports to someone higher in the organization

37

Whether and, if so, to what extent the individual is able to influence the
organization

38

Whether the parties intended that the individual be an employee, as expressed

in written agreements or contracts

39

Whether the individual shares in the profits, losses, and liabilities of the
organization."

40

Id. at 449-50, 123 S.Ct. 1673 (quoting EEOC Compliance Manual 605:0009).

41

At the time the district court decided this case, it was, of course, bound by our
holding in Hyland v. New Haven Radiology Associates, P.C. and its progeny
that shareholders in a professional corporation were always employees for
antidiscrimination purposes. In light of Clackamas, however, it is necessary to
reexamine this issue under the proper standard. Because the point was not
raised or briefed in the district court, no record was developed that could permit
us to decide it now. Thus, on remand, the district court may reopen discovery
or take whatever steps it deems appropriate to determine whether Dr. Rodal
was an employee of the Anesthesia Group entitled to the protections of the
ADA in light of Clackamas.
III. Conclusion

42

To summarize, we conclude that Dr. Rodal is not judicially estopped from

claiming that he was qualified to perform the duties of a Group anesthesiologist
with reasonable accommodation by statements he made in earlier state court
proceedings about the extent of his disability. We further conclude that the
evidence, when viewed in the light most favorable to Dr. Rodal, does not permit
a court to conclude as a matter of law that (1) Dr. Rodal failed to seek any
accommodation for his disability from the Group in 1999; or (2) if he did seek
an accommodation, it was unreasonable because it would have required
relieving him from essential job functions; or (3) even if his requested
accommodation was reasonable, it nevertheless imposed an undue burden on
the Anesthesia Group.

43

Accordingly, we REVERSE the May 18, 2003 judgment in favor of the

Anesthesia Group and REMAND the case to the district court for further
proceedings consistent with this opinion, including further consideration of Dr.
Rodal's status as a Group employee.

Notes:

New York State disability discrimination claims are governed by the same
legal standards as federal ADA claimsSee Parker v. Columbia Pictures Indus.,
204 F.3d 326, 332 n. 1 (2d Cir.2000). Thus, although our discussion will focus
on Dr. Rodal's ADA accommodation claim, our decision pertains equally to his
parallel state claim.

On appeal, the Group asserts that it was not urging summary judgment on this
ground. Accordingly, we assume that the argument is now abandoned

If plaintiff establishes aprima facie case, the burden of production shifts to

defendant, who must articulate a legitimate nondiscriminatory reason for its
challenged actions. If defendant carries this burden, the presumption of
discrimination created by the plaintiff's prima facie showing drops out of the
case, and plaintiff must then prove that defendant's actions were motivated by
impermissible discrimination. See Regional Econ. Cmty. Action Program, Inc.
v. City of Middletown, 294 F.3d 35, 48-49 (2d Cir.2002) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).

Because the district court awarded summary judgment to the Group on the
latter two grounds without specifically addressing the former two, we assume it
resolved these arguments in favor of Dr. Rodal